Page:History of New South Wales from the records, Volume 1.djvu/510

 3^ PRINCIPLES OF 1786-1816 bar^ it was held essential in England tbat both judge and J™*KJJ^ jury should be independent of it; but in the Judge- ^^^. Advocate's Court, both were in its pay, dependent on it for promotion and liable to removal by it at any moment. It was also considered essential that the judge and the and of each jury should be independent of each other; each having a separate province, one for questions ot law, the other for questions of fact. But in the Judge-Advocate's Court, both sat together and deliberated as one body over questions of law and fact ; so that while the jurors were liable to be unduly influenced by the judge, he in his turn was in danger. of being induced to modify his own opinion in deference to theirs.* A third principle recognised in English practice was Noeonnoc- that the judge and the prosecutor should know nothing of judge and each othcr ; and that so far from the former beinff in any prosecutor. .t-ot-ii • i- t manner identified with the prosecution, or bemg supposed to have any concern in it or any leaning towards it, he was, by a pleasant fiction of law, habitually regarded as of counsel for the prisoner. But in the Judge-Advocate^s Court, the judge and the prosecutor were practically one and the same person ; for although it was usual to leave the conduct of simple cases in the hands of the person who made the charge, the indictment was drawn up by the Judge- Advocate, and the evidence to support it had to be .considered by him before he could determine whether or not a prosecution ought to take place. A fourth principle which regulated the practice of the English Courts required Rules of that the established rules of evidence should be adhered to and applied in all cases ; and for that purpose it was the especial function of the judge to see that those rules were strictly observed, and that no question was asked or following terms: — *'The Judge-Advocate is onlj one of the seven jurors who compose, and have committed to them as a Court of Record, the whole jurisdiction as to law aud fact, determining both, it is known, by the opinions of a majority of its members. The J ud^e- Advocate has in truth no especial or other power than any other juror of the Court." Digitized by Google
 * Judge- Advocate Wylde, speaking in 1824, described his position in the